Singling out bar applicants with mental illness

Report
QUESTIONS OF DISCRIMINATION:
Singling out bar applicants with mental illness
Emily Cooper, Disability Rights Washington
NARPA Conference
September 5, 2014, at 1PM
1
What is DRW?
• State designated “P&A” System*
• Private non-profit
• Federal mandate and access
• Serve people with all disabilities
• Directed by people with disabilities
• Sets annual priorities based on public feedback
* All DRW Services are Free
2
DRW’s Services
• Technical Assistance
• Public policy
• Systemic legal services for
disability discrimination or
violation of rights
• Education and training –
like this one on bar
application developments
3
A Character and Fitness Timeline
1970 ABA Model Code of PR “mental or emotional instability”
1990 Americans with Disabilities Act
1994 ABA C&F Resolution – consider privacy and tailor questions
1995 Clark v. Va. Bd. of Bar Exam’rs, 31 ask broad questions
2009 Study shows general trend of tailoring
2013 4 don’t ask any question (AZ, MA, IL, PA) & 3 don’t single
out MI
2014 DOJ writes two guidance letters
2014 TN stops asking about mental health status
2014 DRW releases Questions of Discrimination
2014 Bazelon leads DOJ Settlement Agreement in LA
4
A Character and Fitness Timeline
1970 ABA Model Code of PR “mental or emotional instability”
1990 Americans with Disabilities Act
1994 ABA C&F Resolution – consider privacy and tailor questions
1995 Clark v. Va. Bd. of Bar Exam’rs, 31 ask broad questions
2009 Study shows general trend of tailoring
2013 4 don’t ask any question (AZ, MA, IL, PA) & 3 don’t single
out MI
2014 DOJ writes two guidance letters
2014 TN stops asking about mental health status
2014 DRW releases Questions of Discrimination
2014 Bazelon leads DOJ Settlement Agreement in LA
5
Sanism and Practicing Law
• On “Sanism”: people with MI are:
• dangerous,
• incompetent,
• easily identifiable,
• Segregated
• Stigma Study: 59% “very comfortable” with wheel chair
users, 47% with blindness, and only 19% with mental illness
• Bar inquiries to “protect the public”
6
Dispelling the Myth
• More likely to be victims of crime than
commit crime
• Recidivism in WA (28%, 13%, and .6%)
• Examples:
• Lincoln – depression
• Churchill - depression
• Flaherty - bipolar
• Me - anxiety
7
2012 WSBA Membership Study
• SAMSHA: 20% of Washingtonians have a mental illness
• Only 1.3 % identified in the study; highest barrier
intensity
• WSBA Conclusion:
“These results are troubling and
further targeted study will be
needed to ascertain fully the
sources and causes of barriers to the
legal profession for this group and to
identify steps to reduce the
incidence.”
8
Character and Fitness in WA
1.
2.
3.
4.
5.
Question 24
Question 25
Forms 7 and 8
APR 22
APR 24.2
www.courts.wa.gov
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1. Question 24:
During the past 5 years have you experienced, been diagnosed
with, or undergone treatment for any condition or impairment
(including, but not limited to, substance abuse or dependency,
alcohol or dependency, or a mental condition, psychotic,
mental, emotional, or nervous disorder or condition) which
affects, or if untreated could affect your ability to practice law
in a competent and professional manner?
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2. Question 25:
Within the past two years, have you engaged in or exhibited
any conduct or behavior that could call into question your
fitness to practice law as defined in APR 22(a)?
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3. APR 22(a)
Fitness - defined. Fitness is the absence of any current
mental impairment or current drug or alcohol
dependency or abuse which, if extant, would
substantially impair the ability of the Applicant, Bar
Association member, or Petitioner to practice law.
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3. APR 22(a)
Fitness - defined. Fitness is the absence of any current
mental impairment or current drug or alcohol
dependency or abuse which, if extant, would
substantially impair the ability of the Applicant, Bar
Association member, or Petitioner to practice law.
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4. APR 24.2(d) Factors
• “Whether there is a current mental impairment.”
• “The nature, extent and duration of the
Applicant's mental impairment.”
• “The Applicant's candor in the admissions
process and before the Board when describing
the impairment.”
• “Whether the applicant has received or is
receiving professional mental health treatment
appropriate for the impairment…”
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4. APR 24.2(e) Prohibited Factors and WLAD
• WSBA can’t consider
physical or learning
disabilities
• All disabilities are
protected against
discrimination in RCW
49.60.010
15
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The Results So Far…
• All three law schools joined 89
signatories (you can still sign!)
• ACLU wrote own letter
• Board of Governor’s Workgroup
• Media attention
• DOJ settlement in LA
17
The States Who Don’t Single Out…
…Ask about conduct:
• Criminal charges
• Charged with fraud,
conversion, breach of
fiduciary duty
• Financial
• Discipline
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The Shaming Effect
• Singles applicants out
• Increases the closet factor
• Reduces who seeks
treatment
• Forces applicants to choose
between rights and
profession
• Sends a message to the
public that mental illness
means you aren’t or
wouldn’t be a good lawyer
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Things to Look For
• Data or stories regarding
barriers
• Partners (WADA, GCDE,
ACLU)
• State law
• Further DOJ developments
• Model APRs and
applications
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Emily Cooper, Staff Attorney
315 Fifth Avenue South, Suite 850
Seattle, WA 98104
V: 206-324-1521 or 800-562-2702
TTY: 206-957-0728 or 800-905-0209
www.DisabilityRightsWA.org
emilyc@dr-wa.org
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Bibliography
1. ABA Model Code of Professional Responsibility, “Preliminary
Statement” (1970),
http://www.abanet.org/cpr/mrpc/mcpr.pdf.
2. Clark v. Va. Bd. of Bar Exam’rs, 880 F.Supp. 430 (E.D. Va.
1995).
3. The ABA Resolution on Character and Fitness:
http://www.americanbar.org/content/dam/aba/directories/p
olicy/1994_am_110.authcheckdam.pdf
4. Theresa Esquerra, Mental Illness Disclosure Requirements on
State Bar Moral Character and Fitness Applications: A
Qualitative Study (2009) (supported by the 2009 Scattergood
Emerging Scholars Fellowship, Active Minds), available at
http://www.activeminds.org/storage/documents/theresa_es
queera_mental_illness_disclos
ure_requirments__final_draft.pdf
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Bibliography (cont.)
5. Jennifer McPherson Hughes, Suffering in Silence: Questions
Regarding an Applicant's Mental Health on Bar Applications
and Their Effect on Law Students Needing Treatment, Journal
on Legal Professions, Vol. 28, page 187 (2003-2004)
http://www.law.ua.edu/pubs/jlp/files/issues_files/vol28/v28a1
5.pdf
6. Michael L. Perlin, On “Sanism,” 46 SMU L. Rev. 373 (1992)
7. Jon Bauer, The Character of the Questions and the Fitness of
the Process: Mental Health, Bar Admissions and the Americans
with Disabilities Act, 49 UCLA L. Rev. 93, 99 (2001),
http://ssrn.com/abstract=293613
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Bibliography (cont.)
8. Office of Technology Assessment, U.S. Congress, Psychiatric
Disabilities, Employment, and the Americans with Disabilities
Act 35 (1994).
9. See Joshua Wolf Shenk, Lincoln's Melancholy: How Depression
Challenged a President and Fueled His Greatness 110-11
(2005).)
10. Melody Moezzi, “Lawyers of Sound Mind”, NY Times Op Ed,
August 5, 2013 available at:
http://www.nytimes.com/2013/08/06/opinion/lawyers-ofsound-mind.html?_r=1&
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